Stankewitz v Wong

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FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

DOUGLAS RAY STANKEWITZ,No. 10-99001

Petitioner-Appellee,D.C. No.

v. 1:91-cv-00616-AWIROBERT K. WONG,

OPINIONRespondent-Appellant.

Appeal from the United States District Courtfor the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Argued and SubmittedFebruary 6, 2012Pasadena, California

Filed October 29, 2012

Before: Diarmuid F. OScannlain, Raymond C. Fisher andJay S. Bybee, Circuit Judges.

Opinion by Judge Fisher;Dissent by Judge OScannlain

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COUNSEL

Eric Christoffersen (argued) and John G. McLean, DeputyAttorneys General, Sacramento, California, for therespondent-appellant.

Daniel J. Broderick, Federal Defender; Harry Simon (argued),Assistant Federal Defender, Sacramento, California, for thepetitioner-appellee.

12986 STANKEWITZ v. WONG


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OPINION

FISHER, Circuit Judge:

We consider whether Douglas R. Stankewitz received inef-fective assistance of counsel at the penalty phase of his capitalmurder trial. In a prior appeal in this matter, we held thatStankewitzs allegations that his counsel failed to investigateand present readily available mitigation evidence includingevidence of his deprived and abusive upbringing, potentialmental illness, long history of substance abuse and use of sub-stantial quantities of drugs leading up to the murder if true,would establish that he received ineffective assistance. Weremanded for an evidentiary hearing so that the state wouldhave an opportunity to challenge Stankewitzs allegations. Onremand, however, the state agreed to proceed without an evi-dentiary hearing. The district court, after considering severalthousands of pages of documents describing Stankewitzstroubled background, found that the state had failed to rebutmost of Stankewitzs allegations. The court therefore held thatStankewitzs counsels performance fell below the constitu-tional standards articulated in Strickland v. Washington, 466U.S. 668 (1984), and granted his petition for a writ of habeas

corpus. We affirm.

I.

We recounted the factual and procedural history in ourprior opinion, see Stankewitz v. Woodford, 365 F.3d 706, 708-12 (9th Cir. 2004), and do not repeat it in detail here. In brief,Stankewitz was convicted and sentenced to death in 1978 forthe murder of Theresa Greybeal. The California SupremeCourt reversed that conviction upon automatic appeal becausethe trial court failed to address a conflict between Stankewitzand his public defender, Salvatore Sciandra. Before

Stankewitzs second trial, the trial court found that a conflictindeed existed between Sciandra and Stankewitz andappointed private counsel, Hugh Goodwin. The jury ulti-

12987STANKEWITZ v. WONG


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mately convicted Stankewitz and again sentenced him todeath. After the California Supreme Court rejectedStankewitzs state postconviction challenges, he filed thepresent habeas petition in federal court, raising several chal-lenges to the guilt and penalty phases of his trial. The districtcourt denied the petition in its entirety without holding an evi-dentiary hearing as to any of Stankewitzs claims.

We affirmed the district court with respect to Stankewitzsguilt-phase challenges. See Stankewitz v. Woodford, 94 F.Appx 600 (9th Cir. 2004) (unpublished). We reversed, how-ever, as to Stankewitzs claim that Goodwin rendered ineffec-

tive assistance of counsel during the penalty phase ofStankewitzs trial by failing to investigate and present avail-able mitigating evidence. See Stankewitz, 365 F.3d 706.

With respect to that claim, we undertook a detailed reviewof the mitigating circumstances Stankewitz alleged, Good-wins investigation and penalty phase performance and thetotality of the evidence introduced at trial, and held thatStankewitzs allegations, if true, established that Goodwinsperformance was both deficient and prejudicial under Strick-land. We observed that Goodwins penalty phase presentation

was minimal, consisting of testimony from six witnesses(only four of whom were actually in court) and covering onlyapproximately 50 pages in the transcript. Id. at 716. Twowitnesses focused only on the power of God to help personschange their lives and provided no specific information aboutStankewitz (aside from one witness admission that he had noreason to believe that Stankewitz was religious). See id. Athird witness, by stipulation, testified only that he admired thework of prison chaplains. See id. at 716 & n.4. We describedthis strategy as one that had little hope of succeeding, andindeed seemed predestined to fail. Id. at 716. From theremaining three witnesses, Goodwin elicited only vague refer-

ences to Stankewitzs history: the observation of sores andneedle marks on his arm the day after the shooting, one beat-ing he received as a child, his placement in foster homes and



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the difficulties encountered on Indian reservations. See id. at716-17. We noted that Goodwin elicited this testimony in acursory manner that was not particularly useful or compel-ling. Id. at 724 (quoting Douglas v. Woodford, 316 F.3d1079, 1090 (9th Cir. 2003)). Goodwin also focused little onthe actual details of Stankewitzs life during his closing argu-ment. See id. at 717.

We also observed that Goodwin failed to conduct even themost basic investigation of Stankewitzs background. Good-win never hired an investigator or interviewed Stankewitzsteachers, foster parents, psychiatrists, psychologists or anyone

else who may have examined or spent time with Stankewitzduring his upbringing. See id. at 719. He did not interviewanyone involved in Stankewitzs first trial and thus did notknow about the existence of any diagnoses relating toStankewitzs mental capabilities. See id. He did not procurea psychological examination of Stankewitz, even though hebelieved that Stankewitz was not mentally competent. See id.Furthermore, the six witnesses who did testify at the penaltyphase were obtained with little effort. Stankewitzs sister-in-law, for instance, became a witness because of a chance meet-ing with Goodwin in the courthouse. See id. at 720-21.

Another witness merely had her testimony from Stankewitzsfirst trial read into evidence. See id. at 720. Goodwins keywitness, Probation Officer Joe Walden, met Stankewitz onlyonce when Stankewitz was six years old and affirmed thatGoodwin did nothing to help him prepare to testify. See id. at724. The remaining three witnesses, two of whom providedno testimony specific to Stankewitz and one of whom pro-vided only a two-sentence stipulation regarding the work ofjail chaplains, advanced Goodwins apparent interest in thepower of religion, but provided no mitigating informationabout Stankewitz. See id. at 711-12, 716 n.4, 721. Goodwinalso failed to investigate and rebut the prosecutions aggravat-

ing evidence. See id. at 720 (describing Goodwins failure toinvestigate or rebut the prosecutions testimony indicatingthat Stankewitz shot a police officer, despite readily available



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evidence that would have undermined the prosecutions argu-ment).

Finally, we observed that, in comparison to the meager mit-igation evidence that Goodwin presented to the jury,Stankewitz made compelling allegations in his habeas petitionregarding his deprived and abusive upbringing, potential men-tal illness, long history of drug use and consumption of sub-stantial quantities of drugs in the days leading up toGreybeals murder. See id. at 717-19.

Based on those circumstances, we held that Stankewitzsallegations, if true, would establish that he received ineffec-tive assistance at his penalty phase proceeding. See id. at 722.We remanded for an evidentiary hearing so that the state[would] have the opportunity to challenge Stankewitzs alle-gations.Id. at 725.

On remand, the district court expanded the record toinclude the files of the public defender in Stankewitzs firsttrial, Sciandra, and many other documents proffered byStankewitz. See Rules Governing Section 2254 Cases 7 (per-mitting the district court to expand the record). In total, sev-

eral thousands of pages of documents were added to therecord, including many reports by probation officers and otheremployees at juvenile institutions, psychological evaluationsand declarations by family members and others close toStankewitz. The parties then agreed to brief the merits basedon the evidence in the record. Stankewitz argued that he wasentitled to relief based on the documentary evidence, but, inthe alternative, requested an evidentiary hearing to resolveany contested facts that precluded relief. The state took theposition that no evidentiary hearing was necessary and thatStankewitzs petition should be denied.

In September 2009, the district court issued an order grant-ing Stankewitz a writ of habeas corpus. The court creditedmost of Stankewitzs allegations, noting that many were



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proved by official documents in the record. The court foundthat [e]ven accepting the Wardens objections to some ofStankewitzs allegations, the evidence shows Stankewitz wasalready severely emotionally damaged by the time he wasremoved from his home at age six. Furthermore,Stankewitzs evidence reflected a deprived background,being institutionalized early in his life and essentially raisedin institutions and that Stankewitz was hardened by theyears of criminal associations and surroundings. Relying ona social evaluation conducted when Stankewitz was nineteen,the court found that

[f]rom an early life developmental standpoint,Stankewitz has suffered from early childhood losses,prolonged separation from parents, poor institutionalsurrogate care. This has resulted in poor socialadjustment as manifested by frequent runaways,behavior problems, scholastic under-achievementand finally culminating in anti-social behavior whichhas occurred both in and out of institutional place-ments.

Furthermore, although it found that some of Stankewitzsallegations relating to childhood abuse had limited support,the court found that the record as a whole shows Stankewitzwas psychologically and emotionally damaged by hisupbringing. The court also observed that Stankewitz had avery severe substance abuse problem that began at age 10,and that he had binged on substantial quantities of alcohol,heroin and methamphetamine leading up to the murder.

The court denied the states motion for reconsideration.The state now appeals. It challenges both the district courtsfindings of fact and the legal conclusion that Goodwin ren-

dered ineffective assistance, and urges us to denyStankewitzs habeas petition or, in the alternative, remandagain for an evidentiary hearing.



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II.

We recognized in our prior decision, and the parties agree,that the Antiterrorism and Effective Death Penalty Act of1996 (AEDPA) does not apply to Stankewitzs ineffectiveassistance claim. See Stankewitz, 365 F.3d at 713. We reviewStankewitzs claim under the standard articulated in Strick-land, 466 U.S. 668, which requires that Stankewitz showGoodwins representation was both deficient and prejudicial.See id. at 687. We review de novo the legal question ofwhether Stankewitz received ineffective assistance of counseland review the district courts factual findings for clear error.See Stankewitz, 365 F.3d at 714.

III.

As an initial matter, the state challenges some of the districtcourts findings regarding Stankewitzs background. Webegin by addressing these challenges, but hold that each of thecourts findings was adequately supported by the record.

First, the state challenges the district courts conclusion thatStankewitz was severely emotionally damaged by his

upbringing. The state acknowledges that Stankewitz was borninto a dysfunctional family but argues that Stankewitz couldnot have been damaged because he spent very little time withhis family after he was removed from his home at the age ofsix.

[1] We have no trouble concluding that the district courtdid not clearly err by concluding that Stankewitz was severelydamaged by his upbringing. We described many ofStankewitzs allegations pertaining to his difficult and trau-matic youth in our prior opinion. Stankewitz, 365 F.3d at717-18. As the district court found, most of these allegations

have been substantiated by documentary evidence added tothe record. The documents illustrate that Stankewitz was borninto a poverty-stricken home described by police and proba-



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tion reports as dirty, covered in cockroaches and fleas, andwithout electricity or running water. There was often notenough food for Stankewitz and his nine siblings, who werehighly neglected. A psychiatric evaluation of Stankewitzsmother, Marian, confirms that she had been an alcoholic sinceshe was a child and that she was severely intellectuallyimpaired. Marian was arrested several times for crimes thatinclude assault, grand theft auto and drunk driving, and shewas ultimately convicted of voluntary manslaughter for shoot-ing and killing a man while she was drunk at a party. Accord-ing to Marian, after she got married, she would regularlydrink three to four six packs of beer or two fifths of a gallon

of whiskey in a night, including while she was pregnant withStankewitz. A probation report described Stankewitzs motheras incapable of caring for herself and all of her children andcertainly incapable of caring for Doug. Stankewitzs father,Robert, was an alcoholic truck driver and leader of a motorcy-cle gang. According to his rap sheet, he was arrested severaltimes between 1951 and 1968 for crimes that include wifebeating, robbery, non-support, public drunkenness, forgery,disturbing the peace and contributing to the delinquency of aminor. A judge described Robert as an outlaw and a defi-nite menace to society who had low intelligence, was

without education, had no respect for the rights or feelingsof other [sic] and like[d] violence. According to Marian,Robert severely beat her while she was pregnant withStankewitz, knocking her to the ground, kicking her stomachseveral times and breaking her nose. After Stankewitz wasborn, he and his siblings witnessed Robert beat and threatento kill Marian and attempt to run her over with a car. Onanother occasion, Robert pulled a gun on Marian and firedseveral shots between her legs. Robert and Marian separatedin 1966, when Stankewitz was eight, because of Roberts bru-tal attacks.

According to Stankewitzs sister and aunt, both ofStankewitzs parents regularly beat all of their children. Rob-ert often whipped them with a belt. On one occasion he came



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into the house in the middle of the night with a gun andthreatened to shoot one of Stankewitzs brothers. Marianoften used electric cords or belts, and once even pulled a gunon Stankewitzs sister. They beat the children more if any ofthem cried. Stankewitz was removed from his home at agesix, after his mother gave him a severe beating with an elec-trical ironing cord.

[2] That Stankewitz was severely emotionally damaged byhis early childhood is well-supported by the record. A reportfrom Stankewitzs pre-first grade teacher stated thatStankewitz had [m]any behavioral problems, and would fre-

quently engage in acts such as running out the door, yelling,kicking and screaming. According to a probation officersreport, after Stankewitz was removed from his home he wastaken to the pediatric ward, where the pediatric staff wasunable to control him. Physical restraints had to be used andfrequently replaced because Stankewitz repeatedly chewedthrough them. Stankewitz was removed from two fosterhomes for throwing chairs at and kicking his foster parents,running away and attacking probation officers. Several otherreports describe similar uncontrollable behavior after he wasremoved from his abusive home. Given the evidence in therecord, the district court was clearly justified in crediting

Stankewitzs allegation that significant emotional damage fol-lowed from his troubled childhood. Indeed, contrary to thestates argument, we have previously held that a district courtcommits error by discount[ing] the significance of [a peti-tioners] early childhood on the ground that [he] has no recol-lection of the first few years of his life. James v. Ryan, 679F.3d 780, 815 (9th Cir. 2012) (internal quotation marks omit-ted). It is well established that early childhood trauma, evenif it is not consciously remembered, may have catastrophicand permanent effects on those who . . . survive it.Id. (alter-ation in original) (quoting Hamilton v. Ayers, 583 F.3d 1100,1132 (9th Cir. 2009)).1

1Also, contrary to the states argument, the record contains significantevidence that Stankewitzs relationship with his troubled family did not



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[3] The state also challenges the district courts findingsthat Stankewitz had a history of substance abuse and thatStankewitz consumed substantial quantities of alcohol, heroinand methamphetamine in the days leading to the murder. Thestate acknowledges that Stankewitz introduced evidence onremand that supports each of these allegations, but argues thatsome evidence in the record contradicts the district courtsfindings. Even accepting the states argument that there isconflicting evidence in the record, the state has fallen wellshort of establishing clear error. See United States v. Working,224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (Where there

are two permissible views of the evidence, the factfinderschoice between them cannot be clearly erroneous. (quoting

Anderson v. Bessemer City, 470 U.S. 564, 574 (1985))).

IV.

The state also argues that the record, as developed onremand, does not establish deficiency or prejudice under Str-ickland. We address each of the states arguments in turn.

A. Deficiency

[4] The state contends that Goodwins representation wasnot deficient for two reasons. First, it argues that his failureto investigate and present mitigating evidence was reasonable

end when he was removed from his home at age six. According to reports

in the record, Stankewitz was returned to his mothers custody for a short

period of time at age 11. At age 12, Stankewitz was placed with his aunt,

just before his mother was arrested and convicted of voluntary manslaugh-

ter for shooting and killing a man. At age 13, Stankewitz was released to

his father, who had just been released from prison, but ran away after his

father beat one of his brothers with a whip. At age 14, Stankewitz was

with one of his brothers during a high speed chase, which culminated in

a police officer being shot. Furthermore, evidence in the record indicatesthat Stankewitz continued to feel particularly attached to his ex-convict

uncle and his brothers well into his teenage years.



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because, as Goodwin explained in a declaration, Stankewitzwas opposed to any penalty phase defense. We consideredand rejected this argument eight years ago. We wrote:

Goodwins acquiescence in Stankewitzs purportedopposition was not reasonable.

First, Stankewitzs supposed opposition to anypenalty phase defense is belied by the record.Goodwin did introduce penalty phase witnesses,including a member (by marriage) of Stankewitzsfamily. Stankewitz, whose willingness to object ver-

bally when he disagreed with the decisions of coun-sel or the court was vividly demonstrated by thetranscripts of both trials, did not object to this testi-mony. This suggests either that Stankewitz did notobject to the testimony of family members or thatGoodwin could have convinced Stankewitz to acceptsuch evidence if Goodwin had conducted a properinvestigation and presented the evidence toStankewitz.

Second, Goodwin has alleged that Stankewitz did

not want his family used as witnesses; but he doesnot claim that Stankewitz objected to his familybeing interviewed or to an investigation that reliedon non-family members. We have previously heldthat opposition to calling family members or expertsas witnesses does not excuse an attorney from inter-viewing experts and family members or from inves-tigating documents containing mitigating evidence.See Silva v. Woodford, 279 F.3d 825, 840 (9th Cir.2002) (Silvas directive [against calling his familymembers as witnesses] did not automatically requireforegoing all inquiry into his past.); cf. Hayes v.

Woodford, 301 F.3d 1054, 1067 (9th Cir. 2002) (dis-tinguishing Silva where defendant made clear tocounsel that he did not want his family members cal-



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led as witnesses or involved in any investigation).Stankewitzs supposed opposition also should nothave prevented Goodwin from attempting to rebutthe prosecutions aggravating evidence, such as bychallenging Officer Reids testimony about theshoot-out, discussed above.

Thus, Stankewitzs supposed opposition to miti-gating evidence cannot explain Goodwins tactics.

Stankewitz, 365 F.3d at 721-22. The state did not introduceany evidence on remand nor has it advanced any argument on

appeal that undermines our earlier analysis.2,

3

We thus reaf-

2The state cites to Schriro v. Landrigan, 550 U.S. 465 (2007), for theproposition that Goodwins failure to present additional mitigating evi-dence cannot be the basis for ineffective assistance under Stricklandbecause Stankewitz expressed a desire not to present such evidence. Wehave already rejected this expansive reading of Landrigan, a post-AEDPA case [in which] the defendant actively obstructed counsels inves-tigation and outright refused to allow counsel to present any mitigatingevidence. Hamilton, 583 F.3d at 1119. As we noted, the defendant inLandrigan explicitly instructed witnesses not to testify and repeatedlyinterrupted his lawyers presentation to the court. See id. We held thatLandrigan is inapplicable where the defendant did not threaten toobstruct the presentation of any mitigating evidence that counsel found.

Id. Here, the district court specifically found that despite his allegedobjection to the presentation of mitigation evidence, Stankewitz did notinterrupt or try to sabotage trial counsels presentation.Landrigan is thusinapposite.

3For the first time since Stankewitz filed his petition, the state advancesthe argument that Goodwin made a tactical decision not to present anymitigating evidence because he knew Sciandra presented some of the miti-gating evidence in Stankewitzs first trial, in which Stankewitz nonethe-less was sentenced to death. This argument, too, is belied by the record.Goodwin himself declared that he did not present the evidence because ofStankewitzs opposition. The record also reveals that Goodwin was will-ing to present mitigating evidence insofar as it fell in his lap. SeeStankewitz, 365 F.3d at 720-21 (describing how Stankewitzs sister-in-lawbecame a witness because of a chance meeting with Goodwin). Further-more, we reject the states suggestion that a lawyer exercises reasonablejudgment when he or she decides not to present mitigating evidence sim-ply because that mitigating evidence was unsuccessful in a prior trial.



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firm our determination that Stankewitzs supposed oppositionto a penalty phase defense does not excuse his failure toinvestigate and present mitigating evidence.

Second, the state argues that dramatic changes to therecord since we considered Stankewitzs allegations nowundermine our prior deficiency analysis. The critical change,according to the state, is that the record now establishes thatGoodwin had in his possession Sciandras files fromStankewitzs first trial that contained much of the mitigatingevidence that Stankewitz now relies upon. According to thestate, this establishes that Goodwin reasonably investigatedmitigation evidence. We disagree. That Goodwin possessedsome mitigating evidence does not alter our conclusion thathe rendered deficient performance.

[5] It is undisputed that, despite Goodwins possession ofthe files, he did not investigate any of the evidence containedwithin them. He did not contact Sciandra to discuss the con-tents of the files. He also never hired an investigator or inter-viewed Stankewitzs teachers, foster parents, psychiatrists,psychologists or anyone else who may have examined orspent significant time with him during his childhood and

youth and did not interview anyone involved inStankewitzs first trial and thus did not know about the exis-tence of any diagnoses of Stankewitzs mental capabilities.Id. at 719. He did not obtain a psychological examination ofStankewitz, despite his belief that Stankewitz was not men-tally competent, and did not pursue any of the evidence ofStankewitzs history of drug and alcohol abuse. See id.4 Wethus reaffirm our holding that Goodwins failure to takethese steps to look into Stankewitzs life history, despite tan-talizing indications in the record, as in Wiggins [v. Smith, 539U.S. 510 (2003)], that would lead a reasonable attorney to

4The only evidence that Goodwin looked at Sciandras files is a one-page chart he created, which lists the whereabouts of Stankewitzs parentsand siblings throughout the 1960s and 70s.



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investigate further amounted to constitutional deficiency.Id. at 720 (quoting Wiggins, 539 U.S. at 527); see also Lam-bright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007) (reaf-firming the principle that when tantalizing indications in therecord suggest that certain mitigating evidence may be avail-able, those leads must be pursued (quoting Stankewitz, 365F.3d at 720)).

[6] The states argument that Goodwins mere possessionof Sciandras files demonstrates that Goodwin conducted areasonable investigation defies logic if anything, thatGoodwin had this evidence at his fingertips but did not inves-

tigate or present it is further proof of his deficiency. It alsoconflicts with our prior decisions. InJames, 679 F.3d 780, forinstance, the petitioner similarly argued that his counsel pro-vided ineffective assistance during the penalty phase of histrial. Like Stankewitz, the petitioner proffered substantial mit-igating evidence that could have been presented, which docu-mented an impoverished childhood marred by alcoholic,criminal and abusive parents, signs of serious childhoodtrauma, placement in various foster homes and institutions,possible mental deficiencies, a long history of drug use andsubstantial drug use immediately prior to committing the

crime of conviction. See id. at 810-15. InJames, it was undis-puted that the petitioners trial counsel possessed and wasaware of much of the mitigating evidence that the petitionerproffered, including evidence that the petitioner suffered frommental illness, that he was under the influence of LSD at thetime of the murder and that he suffered psychological andemotional trauma as a child. See id. at 808-09. We held thatthe petitioner received ineffective assistance because coun-sels possession of such evidence should have prompted fur-ther investigation. Id. at 808. Counsels possession andawareness of the evidence, but failure to investigate or presentit, is evidence of not an excuse for his deficiency.

In Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005) (enbanc), the petitioner similarly argued that his trial counsel



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provided ineffective assistance by failing to investigate andpresent the same sort of classic mitigation evidence that weconsider here. See id. at 631 (describing evidence of the peti-tioners tortured family history, including the fact that [his]alcoholic mother beat him frequently, and possible mentalhealth issues). There, similar to here, one of the petitionersprior attorneys had investigated some mitigating evidence andcommunicated the results of the investigation to the petition-ers trial counsel. See id. at 632. We held that the petitionerstrial counsel rendered ineffective assistance because, despitethe fact that the evidence was in [his] hands, he failed todo any further investigation or development of this critical

mitigation evidence. Id.; see also Rompilla v. Beard, 545U.S. 374, 385-90 (2005) (holding that counsel rendered inef-fective assistance where she obtained the petitioners priorconviction file but failed to adequately review it prior to thepetitioners sentencing hearing); Correll v. Ryan, 539 F.3d938, 944 (9th Cir. 2008) (holding that trial counsel renderedineffective assistance for failing to present mitigating evi-dence despite the abundance of classic mitigation evidenceof which [he] was aware).

Finally, even if we were to assume that Goodwin wasaware of all of the mitigating evidence in Sciandras files, he

was still deficient for failing to present the evidence with notactical basis for doing so. See Hamilton, 583 F.3d at 1113(Counsel . . . has an obligation to present and explain to thejury all available mitigating evidence. (citing Correll, 539F.3d at 946)); id. at 1119 (Defense counsel compounded theerrors he committed during the investigative stage of the pen-alty phase by presenting almost none of the little mitigatingevidence he had discovered.).

[7] We thus reject the states argument that Goodwinspossession of Sciandras files undermines our prior analysisand hold that Goodwin provided deficient representation.5 In

5The state points out that some of the allegations we considered in ourprior decision were not credited by the district court on remand. In particu-



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doing so, we remain sensitive to the Supreme Courts guid-ance that habeas courts must give substantial weight to theconstitutionally protected independence of counsel and thewide latitude counsel must have in making tactical decisions.See Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). Weare faced, however, with a situation in which counsels failureto investigate and present mitigating evidence cannot be ratio-nalized on any tactical ground. It is simply untenable thatGoodwins decision to forgo powerful mitigating evidenceand instead put on his paltry penalty phase presentation wasmade in the exercise of reasonable professional judgment.

Id. at 1403.

B. Prejudice

The states final argument is that the Supreme Courts deci-sion in Wong v. Belmontes, 130 S. Ct. 383 (2009) (percuriam), undermines our prior prejudice analysis and the dis-trict courts conclusion on remand that Stankewitz was preju-diced.6

In Belmontes the Supreme Court rejected a petitionersclaim that his counsel was ineffective for failing to investigate

lar, the court considered questionable the declarations of Rosamond andRosetta Bollmeyer, Stankewitzs foster mother and sister, who testifiedthat Stankewitz may have been sexually abused while he was institutional-ized at Napa State Hospital. The district court also did not make specific

findings with respect to specific facts that we mentioned, such as whetherStankewitz was taken to the emergency room three times before his firstbirthday, whether Stankewitz was born with fetal alcohol syndrome or

whether a scar on Stankewitzs head originated from child abuse. SeeStankewitz, 365 F.3d at 717-18. The courts failure to make a specificfinding as to every one of Stankewitzs allegations is not dispositive; weare satisfied that the findings the court did make are sufficient to sustain

Stankewitzs ineffective assistance claim.

6Belmontes was decided between the time the district court issued itsorder granting Stankewitzs petition for habeas corpus and the time itissued its order denying the states motion for reconsideration.



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and present additional mitigating evidence at the sentencingphase of his capital murder trial. See id. at 384. The Courtassumed that Belmontes counsels failure to investigate satis-fied Stricklands deficiency prong, see id. at 386, but heldthat, even so, Belmontes could not show prejudice for tworeasons. First, some of the evidence Belmontes advanced withhis habeas petition was merely cumulative of the substantialhumanizing evidence his counsel had already presented attrial. See id. at 387-88. The Court noted that Belmontescounsel presented substantial mitigating evidence: nine wit-nesses, including various family members, who testified aboutBelmontes terrible childhood, his alcoholic and abusive

father, his strong relationships with certain family members,his religious conversion and his success at working as part ofa firefighting crew. Id. at 387-88.

Second, the record made clear that presenting additionalmitigating evidence would have opened the door to poten-tially devastating aggravating evidence that Belmontes wasresponsible for a second, unsolved murder the worst kindof bad evidence. Id. at 385, 387-90. The evidence wouldhave disclosed that Belmontes was suspected of killing a manexecution style, that Belmontes possessed the gun used inthe murder and that he had boasted to several people that he

committed the murder. Id. at 385. Furthermore, Belmontescounsel specifically testified that he did not introduce addi-tional mitigating evidence because he had grave concernsthat presenting the evidence would open the door to the dam-aging evidence. Id.; see also id. at 386 (describing the trialcourts warnings to Belmontes counsel that he must tailor hismitigation case carefully to keep the evidence out). Consider-ing all of these factors, the Supreme Court concluded thatBelmontes suffered no prejudice, because [i]t is hard toimagine expert testimony and additional facts about Bel-montes difficult childhood outweighing the facts of [the sec-ond] murder. Id. at 391.

The state contends that, applying Belmontes, Stankewitzlikewise cannot establish prejudice. It argues that the evidence



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of Stankewitzs history would have been damaging becausethe jury might have concluded from the evidence thatStankewitz had a violent, antisocial personality and it wouldhave opened the door to further evidence of antisocial behav-ior.

[8] We accept the states argument that some of the evi-dence Stankewitz has proffered illustrates serious antisocialbehavior, including several emotional and violent outburststhroughout his life. We also accept the states argument thatsuch evidence may be aggravating, rather than mitigating. SeeDaniels v. Woodford

, 428 F.3d 1181, 1192-93, 1210 (9th Cir.2005) (suggesting that evidence that the defendant was asociopath was aggravating);Beardslee v. Woodford, 358 F.3d560, 583 (9th Cir. 2004) (acknowledging that an antisocialpersonality diagnosis can be damaging);In re Crew, 254 P.3d320, 333-34 (Cal. 2011) (treating a defendants possible diag-nosis with antisocial personality disorder as aggravating). Butsee Lambright, 490 F.3d at 1122, 1125 (treating antisocial orsociopathic behavior as a mitigating factor based on Arizonalaw).

[9] Even so, Belmontes does not change our conclusion

that Stankewitz was prejudiced by Goodwins failure to inves-tigate or present any of the available mitigating evidence.Indeed, the contrast between the two cases reinforces our pre-vious unanimous conclusion, when remanding the case to thedistrict court, that a more complete presentation, includingeven a fraction of the details Stankewitz now alleges, couldhave made a difference. Stankewitz, 365 F.3d at 724.

[10] Stankewitzs case is materially different from Bel-montes.7 First, unlikeBelmontes, in which the mitigation pre-

7Our dissenting colleague argues that merely distinguishing Belmontesis insufficient because it did not mark the exact boundary between preju-dice and harmlessness. Dissent at 13011. We agree there is no exactboundary, but we can certainly compare the circumstances the Court



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sentation was substantial, here the mitigation presentationbarely touched on Stankewitzs extremely troubled childhood.See Stankewitz, 365 F.3d at 716-22. Second, in its penaltyphase presentation, the prosecution put before the jury sub-stantial evidence of Stankewitzs violent, antisocial behavior.Multiple witnesses testified, for instance, that Stankewitzseverely beat a 70-year-old man, stole his car and then partici-pated in a highspeed chase and shootout that resulted in apolice officer being shot in the head, with strong implicationsthat Stankewitz was the shooter. See id. at 710-11, 720, 723-24. Several other witnesses testified about Stankewitzs attack

on a youth counselor at the California Youth Authority, hisarmed robbery and kidnapping of Jesus Meraz, his stabbingof a fellow inmate, his attack on several police officers whowere attempting to book him and various violent outburstswhile he was in jail. See id. at 710-11, 723. To the extentadditional evidence of the violent emotional outbursts that arepart of Stankewitzs history would have had an aggravatingimpact, it would have been marginal relative to the evidenceof antisocial behavior already before the jury.

In short, Stankewitzs posture at the penalty phase was thepolar opposite of that in Belmontes. For Stankewitz, anyadverse impact of the additional mitigation evidence wouldhave been merely cumulative because the prosecution hadalready painted a grim picture of Stankewitzs violent, antiso-cial tendencies. Instead, it is the mitigating effect of the prof-fered evidence that would have been novel because the juryhad heard next to nothing about Stankewitzs traumatic child-

found dispositive in Belmontes with those that exist here and determine

whether the cases are analogous. This is the very process we applied in our

original opinion, looking to the relevant Supreme Court cases extant at the

time and unanimously concluding not only that Stankewitz was preju-

diced, but that even a fraction of the details Stankewitz [previously]

allege[d] could have made a difference. Stankewitz, 365 F.3d at 724.Bel-montes is a more recent comparator, but, as we explain, this case is noth-

ing like Belmontes.



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hood. Furthermore, although the state has alluded to furtheraggravating evidence that it would have presented had Good-win developed Stankewitzs childhood history, it has notidentified anything that would have been even remotely asdamaging as the second murder counsel sought to keep out inBelmontes.8

[11] Accordingly, we continue to believe the more analo-gous cases here are the Supreme Courts decisions in Wigginsv. Smith and Williams v. Taylor, 529 U.S. 362 (2000). SeeStankewitz, 365 F.3d at 714-16. In Wiggins, for instance, acapital habeas petitioners defense counsel failed to introducesocial history mitigation evidence during the penalty phase,including evidence that Wiggins experienced severe priva-tion and abuse in the first six years of his life while in the cus-tody of his alcoholic, absentee mother[, and that h]e sufferedphysical torment, sexual molestation, and repeated rape dur-ing his subsequent years in foster care. Wiggins, 539 U.S. at535. The Court pointed out that this is the type of evidencethat is relevant to assessing a defendants moral culpability,id., and held that the failure to introduce this evidence at thepenalty phase was prejudicial: [H]ad the jury been con-fronted with this considerable mitigating evidence, there is a

reasonable probability that it would have returned with a dif-ferent sentence. Id. at 536. So too, here. Stankewitzs prof-fered mitigation evidence is precisely the sort that is relevantto his moral culpability. The Court did note that, becauseWiggins did not have a pattern of aggressive behavior or acriminal history, his mitigation evidence was unlikely to pose

8The state argues that if Stankewitz had presented expert testimony thathis emotional outbursts were the result of a mental disorder, it would havecountered with expert testimony that the outbursts were the result of hisantisocial personality. As discussed, there was already powerful evidencebefore the jury of Stankewitzs antisocial behavior. The state also suggeststhat if Stankewitz had presented evidence of his troubled childhood to thejury, it would have attempted to impeach the credibility of some of thewitnesses. This additional aggravating evidence is a far cry from evidencelinking the petitioner to an additional murder, as in Belmontes.



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the double-edged sword problem presented in other cases (andnow exemplified by Belmontes). See id. at 515-16, 535-36.Although Stankewitzs history is certainly not benign likeWiggins, the probability that the proffered mitigation evi-dence would have cut in the prosecutions favor is low giventhat the jury was already aware of Stankewitzs violent, anti-social behavior.

The decision facing Goodwin was whether to rebut thestates substantial aggravating evidence by presenting a narra-tive that might have humanized Stankewitz to the jury or sim-

ply to ignore the states presentation. Goodwin defaulted tothe latter, without any tactical basis for doing so. Cf. Summer-lin, 427 F.3d at 635 (The net result was that [the defendant]presented no affirmative evidence and no rebuttal evidence,although as we have discussed there was an abundanceof available classic mitigation evidence concerning familyhistory, abuse, physical impairments, and mental disorders.).

Another indicator of prejudice, as we explained in our pre-vious opinion, is the difficult time the jury had reaching aunanimous verdict on death. See Stankewitz, 365 F.3d at 724-25. Several jurors initially voted for life and one juror statedthat extensive deliberation was required to convince a hold-out juror to vote for death. See id. at 725. Had the jury beenable to place [Stankewitzs] excruciating life history on themitigating side of the scale, there is a reasonable probabilitythat at least one juror would have struck a different balance.Wiggins, 539 U.S. at 537.

Finally, the dissent argues that the district court did notapply the proper standard in its prejudice analysis because itdid not consider the potential for the supposedly mitigatingevidence to be perceived as aggravating evidence, and that we

should remand for the court to do so. We agree that the properlegal standard requires consideration of both the potentialaggravating impact and the potential mitigating impact of the



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proffered evidence. We disagree, however, that the districtcourt must perform another prejudice analysis.

Even assuming the district court applied the incorrect stan-

dard and erroneously neglected to consider the possibility that

the proffered evidence would be perceived as aggravating, our

analysis above illustrates why application of the correct stan-

dard would yield the same result. Cf. Agarwal v. Arthur G.

McKee & Co., 644 F.2d 803, 807 & n.3 (9th Cir. 1981)

(Although the district court may have applied the wrong

standard, application of the correct standard would surely

have led to the same result. . . . Therefore it appears that underany standard the district court would reach the same result,

and a remand under those conditions would be pointless.).9

[12] In sum, the record shows that there was indeed sub-

stantial mitigating evidence that could have been presented

with little or no risk of further aggravating the negative infor-

mation the jury already knew about Stankewitz. Given Good-

wins paltry penalty phase presentation and the jurys

apparent difficulty in reaching a verdict, we hold that the dis-

trict court correctly found that Goodwins failures prejudiced

Stankewitz before the jury.

9The dissent also urges remand because appellate judges are ill-suited

to apply the correct prejudice standard, in the first instance. Dissent at

13008-09. As discussed above, the district court did not conduct an evi-

dentiary hearing, and the record is entirely documentary. Thus, a review

of the record does not hinge on credibility determinations made of live

witnesses. Appellate courts are competent to review documentary evi-

dence, particularly in light of the thorough review of the record this same

panel conducted when deciding the earlier appeal in this case. Further-

more, the district court did find, as a factual matter, that the state failed

to rebut the majority of Stankewitzs allegations the same allegations

that our panel unanimously held would have made a difference had theybeen presented to the jury during the penalty phase. See Stankewitz, 365

F.3d at 724.



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V.

[13] Eight years ago, we recognized that Stankewitzadvanced a colorable claim of ineffective assistance of coun-sel and we remanded for an evidentiary hearing to give thestate an opportunity to rebut Stankewitzs allegations. Afteragreeing to proceed without an evidentiary hearing and failingto meaningfully rebut Stankewitzs allegations, the state asksus to remand for an evidentiary hearing so that it can tryagain. The state has given us no good reason to do so. Weaffirm the district courts order granting Stankewitz a writ of

habeas corpus directing the State of California to either: (a)vacate and set aside the death sentence in People v. DouglasRay Stankewitz, Fresno County Superior Court Case No.227015-5, unless the State of California initiates proceedingsto retry Stankewitzs sentence within 90 days; or (b) resen-tence Stankewitz to life without the possibility of parole.

AFFIRMED.

OSCANNLAIN, Circuit Judge, dissenting:

To prevail on a claim under Strickland v. Washington, 466U.S. 668 (1984), a habeas petitioner must show that his attor-ney performed deficiently and that such performance preju-diced him. This case presents an important, recurring issueunder Stricklands prejudice prong: the proper standard forevaluating whether a petitioner was prejudiced by his attor-neys failure to present mitigating evidence at sentencing.When evaluating a failure-to-present-mitigating-evidenceclaim under Stricklands prejudice prong, Supreme Court lawis clear that a court must consider not just the benefits of

never-presented mitigating evidence, but also its drawbacks.The district court did not apply that prejudice standard here.Yet, rather than remand this case to let the district court apply



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the right standard, the panel majority tries to apply that stan-dard for the first time on appeal.

With respect, that effort has my colleagues flailing in thedark. The record before us is huge and the prejudice issue inthis case is especially difficult. We appellate judges are ill-suited to apply the correct prejudice standard, in the firstinstance, to a voluminous record. A district court decisionapplying the right standard would have been invaluable to ourreview of this challenging case.

Rather than evaluating prejudice on the merits, I would

clarify the standard for evaluating failure-to-present-mitigating-evidence claims under Strickland, then remand thiscase, once again, to allow the district court to reevaluate prej-udice under the correct standard. This would do a service tocircuit lawwhich has long been confused on that standardand would aid us greatly if we were to consider this case onanother occasion. Thus, I respectfully must dissent from themajoritys decision to take a different approach.

I

When we first considered this case, we said that [a] more

complete presentation of evidence at the penalty phasecould have made a difference in Stankewitzs sentence.Stankewitz v. Woodford, 365 F.3d 706, 724 (9th Cir. 2004).Applying that instruction on remand, the district court ruledthat, [s]ince many of Stankewitzs [mitigation] allegationsare proved by official documents in the record, the require-ments for his ineffective assistance of counsel claim as setforth in [our 2004] opinion are satisfied. In so ruling thatStankewitz had suffered prejudice from his attorneys perfor-mance, however, the district court failed to evaluate thepotentially aggravating effect of much of Stankewitzs newevidence.

The district court therefore did not apply the correct legalstandard. As the Supreme Court recently reaffirmed in Wong



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v. Belmontes, when evaluating Stricklandprejudice it is nec-essary to consider all the relevant evidence that the jurywould have had. 130 S. Ct. 383, 386 (2009) (per curiam). Acourt may not consider just the mitigating evidenceor justthe mitigating effect of any evidencethat might have beenpresented. See id. at 386, 390. Ostensibly mitigating evidence,after all, can be a double-edged sword: it can also be aggra-vating or can invite devastating rebuttal. See, e.g., Cullen v.Pinholster, 131 S. Ct. 1388, 1410 (2011) (evidence regardingpetitioners family problems may not have been mitigatingbecause it could have led the jury to conclude that the peti-tioner was beyond rehabilitation);Atkins v. Virginia, 536 U.S.304, 321 (2002). While mitigating evidence might ma[k]e adifference if presented, it can do so in the wrong directionfor the habeas petitioner. Belmontes, 130 S. Ct. at 388.

That may well be the case here. Stankewitz has offered evi-dence of his difficult youth, of his history of mental illness,and of his substance abuse and lack of sleep before the mur-der. But much of this evidence is of questionable mitigatingvalue, Pinholster, 131 S. Ct. at 1410, andworse yetcould well have worked in the wrong direction forStankewitz, Belmontes, 130 S. Ct. at 388. As a youth

Stankewitz was a violent sociopath who often hurt people.Evidence of his youth was thus by no means clearly mitigat-ing, as the jury might have concluded that [Stankewitz] wassimply beyond rehabilitation. Pinholster, 131 S. Ct. at 1410.The same goes for the evidence of mental illness and of drugabuse, which likewise may have done Stankewitz more harmthan good. See id.; Brewer v. Quarterman, 550 U.S. 286,289-90, 292-93 (2007) (evidence of mental illness and sub-stance abuse can be a double-edged sword); Correll v. Ryan,539 F.3d 938, 963 (9th Cir. 2008) (OScannlain, J., dissent-ing) (collecting cases explaining that evidence of mental ill-ness may harm more than help).

Yet the district court weighed the mitigating evidencewholly in Stankewitzs favor. In doing so, the court appar-



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ently believed that it was following our direction that evena fraction of the details Stankewitz [previously] allege[d]could have made a difference in his sentence. Stankewitz,365 F.3d at 724. But whatever we last said about the potentialeffect of Stankewitzs allegations, the district court was stillrequired to weigh both the goodand the badeffects ofStankewitzs new evidence. That is what Strickland requiresand what Wong v. Belmontes reaffirms.

II

Because the district court did not apply the correct legalstandard, on appeal we have been deprived of a solidlygrounded district court decision to aid us. Yet this is no matterfor the majority, which, for the first time on appeal, purportsto apply the right standard. But the majoritys thin prejudiceanalysis shows only how hard it is to evaluate Stricklandprej-udice when the district court does not, in the first instance,apply the correct standard to an enormous factual record.

A

The majority declines to conclude that Stankewitz was not

prejudiced by [his counsels] failure to investigate or presentany of the mitigating evidence largely because Stankewitzscase is materially different from [Wong v.] Belmontes. Maj.op. 13003. This case is not as bad as Belmontes, the majoritycontends, because (1) the aggravating effect of Stankewitzsmitigation evidence might not have been as bad as in Bel-montes, and (2) in contrast to Belmontes, Stankewitzs juryhad already gotten a taste of that aggravating effect. Maj. op.13003-04.

These distinctions may be accurate, but they do not showthat Stankewitz was prejudiced. The majoritys analysis

shows only that this case may be closer thanBelmontes. Thatdoes not say much. The decision inBelmontes was both unan-imous and summary. It was not close. Belmontes should not



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be treated as though it marked the exact boundary betweenprejudice and harmlessness. This case may present a closercall, but that does not mean that the call must be made forStankewitz.

B

Once we step past the majoritys efforts to distinguishWong v. Belmontes, we are left with almost no analysis of preju-dice.1 The majority lobs some conclusory assertions thatStankewitz suffered prejudice. See, e.g., maj. op. 12998 (con-tending, without analysis, that evidence of Stankewitzs lifehistory would have tipped the scale). But the majority givesno persuasive grounds for concluding that Stankewitz hasdemonstrated a reasonable probability that his sentence wouldhave been different with his mitigation evidence.

Rather than peddling an unpersuasive prejudice analysis,we should have used this case to clarify the law on double-edged mitigation evidence and then remanded to allow thedistrict court to evaluate prejudice under the right standard.That approach is common to federal appellate courts. See,e.g., United States v. Bus. of Custer Battlefield Museum &

Store Located at Interstate 90, Exit 514, S. of Billings, Mont.,658 F.3d 1188, 1196 (9th Cir. 2011) (Fisher, J.) (vacating andremanding for the district court to apply the correct legal stan-dard); Tamas v. Dept of Soc. & Health Servs., 630 F.3d 833,837, 847 (9th Cir. 2010) (same); cf. Sears v. Upton, 130 S. Ct.3259, 3261, 3265-67 (2010) (per curiam) (vacating andremanding when lower court had not applied the correct prej-

1The majority does attempt briefly to analogize this case to Wiggins v.Smith, 539 U.S. 510 (2003), see maj. op. 13005-06, but Wiggins is distin-guishable for the reason the majority gives: because Wiggins did nothave a pattern of aggressive behavior or a criminal history, his mitigationevidence was unlikely to pose the double-edged sword problem presentedin other cases (and now exemplified byBelmontes). Maj. op. at 13005-06(citing Wiggins, 539 U.S. at 515-16, 535-36); see also id. (admitting thatStankewitzs history is certainly not benign like Wiggins ).



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udice inquiry); United States v. Lanier, 520 U.S. 259, 272(1997) (Because the Court of Appeals used the wrong gaugein [reaching its decision] . . . , we vacate the judgment andremand the case for application of the proper standard.).

This approach is especially warranted where, as here, acase demands a difficult weighing of voluminous evidencean exercise at which district courts excel. Rather than reachout to decide the merits, I would simply remand to let thatexercise take its course. That is the prudent approach.

III

That approach also would have done a service to our circuitlaw.

Before the decision in Wong v. Belmontes, our circuit wasawash with Strickland cases that ignored the drawbacks ofostensibly mitigating evidence. E.g., Correll v. Ryan, 539F.3d 938 (9th Cir. 2008); Belmontes v. Ayers, 529 F.3d 834(9th Cir. 2008); Ainsworth v. Woodford, 268 F.3d 868 (9thCir. 2001). This reasoning squarely conflicted with theSupreme Courts Strickland jurisprudence. See, e.g., Correll,

539 F.3d at 962 (OScannlain, J., dissenting) (explaining that,in finding Stricklandprejudice, the panel majority ignores amountain of precedent which requires us to consider not onlythe benefits of the ostensibly mitigating evidence counselfailed to present, but also its potential drawbacks); Bel-montes v. Ayers, 529 F.3d at 879-80 (OScannlain, J., dissent-ing) (In order to discern prejudice, the majority overstatesthe mitigating evidence, understates the properly admittedaggravating evidence, and ignores the further aggravating evi-dence that would have come in on rebuttal.);Ainsworth, 268F.3d at 880 (Graber, J., dissenting) ([M]uch of the mitigating

evidence on which the majority relies presented a double-edged sword, opening the door to harmful rather than helpfulinferences.).



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The Supreme Court took notice and repudiated this reason-ing in Wong v. Belmontes. Yet our circuit is already showingsigns of backsliding. See, e.g., James v. Ryan, 679 F.3d 780,810-20 (9th Cir. 2012) (finding Stricklandprejudice based onevidence of the petitioners dysfunctional upbringing, drugabuse, and mental illnesswithout citing Wong v. Belmontesor considering the potential downside of such evidence). Weshould have halted that backsliding by making clear thatWong v. Belmontes invalidates significant parts of our circuitlaw regarding failure-to-present-mitigating-evidence claimsunder Strickland.

IV

While I hesitate to remand this decades-old case once more,that is the prudent course. In this capital case, the stakes arehigh enough to take the long view, get circuit law right, andleave Stankewitzs particular case for another day.2 If that daywere to come, we would have the benefit of a better-groundeddistrict court decision, and we could be confident that we gotthis case right. We cannot be confident today.

I respectfully dissent.

2It would also have relieved us from delving into whether Stankewitzstrial counsel performed deficiently. The Supreme Court has stated that,[i]f it is easier to dispose of an ineffectiveness claim on the ground oflack of sufficient prejudice, . . . that course should be followed. Strick-land, 466 U.S. at 697; see Belmontes, 130 S. Ct. at 386 (a court need notresolve whether counsel performed deficiently when a petitioner cannotestablish prejudice). Rather than muscling through the record to evaluateperformance, the majority should have waited to see if it needed to evalu-ate performance at all. Because I believe that we should have waited, Ioffer no view on the majoritys analysis of Stricklands performanceprong.


Stankewitz v Wong

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